IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2018-KA-00132-COA IRA JOSEPH CLAYTON A/K/A IRA CLAYTON A/K/A IRA J. CLAYTON A/K/A IRA WILSON APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 12/11/2017 TRIAL JUDGE: HON. CELESTE EMBREY W ILSON COURT FROM W HICH APPEALED: DESOTO COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA M. AINSW ORTH DISTRICT ATTORNEY: JOHN W . CHAMPION NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED: 11/27/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ. GRIFFIS, P.J., FOR THE COURT: ¶1. Ira Joseph Clay

ton appeals his conviction of the unlawf ul possession of a mo t o r vehicle and argues there is insuf f icient evidence to support the conviction and the verdict is against the overwhelm ing weight of the evidence. W e f

ind no error and af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. In March 2017, Clay ton m oved in w i th his girlf rien d , R i k i esha W illiam s, at her apartm ent in Southaven. W illiam s owned a 2012 Volkswagen Jetta. Since Clay t on did not have a vehicle, he would use W illiam s’s car.¶3. On the m o r n i n g o f M a y 26, 2017, C lay ton and W illiam s went to Mem phis f or an appointm e nt and s ubsequently returned to S outhaven. C lay ton d rove them to and f

rom the appointm e nt in W illiam s’s car. ¶4. W h en they returned hom e, Clay ton and W illi a ms g o t i nto a series of argum ents. Dur i n g t h e s e cond argum ent, W illiam s told Clay ton she n o l onger wanted to be in the relationship and a sked him to pack his belongings and leave. C lay ton began to pack but subsequently

lef t the apartm ent and walked to W illiam s’s aunt’s house. ¶5. Approxim ately tw o t o three hours later, Clay ton called W illiam s and asked her to

com e pick him up so he could get the rest of his belongings. W illiam s agreed. W hen they returned to W illiam s ’ s apartm ent, Clay ton and W i lliam s got i nto another argum e nt. During the phy sical altercation, a gun discharged and W illiam s was shot twice, once i n her right leg, and once in her lef

t leg. W illiam s’s phone was also broken. ¶6. Following the shooting, Clay ton grabbed W illiam s ’ s car key s and l ef t the apartm ent

com plex in W illiam s’s car. According to W illiam s’s neighbor, Queen Rice, Clay ton ran out of the apartm ent to the car, jum p ed in, and sped of

f

. ¶7. Clay

ton was indicted as a h abitual of f e nder pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2015) on Count 1, pos s e s sion of a weapon as a convicted f elon; Count 2, aggravated assault; and C ount 3, unlawf ul possession of a m otor vehicle. Clay ton

was convicted of Count 3 only

. The jury was unable to reach a unanim ous verdict as to Count 1 , a nd f

o und Clay

ton not guilty o n Count 2. Clay ton wa s s entenced as a habitual

2of

f ender to serve ten y ears i n the custody of the Mississippi Departm ent of Corrections, to

run consecutively to a ny current sentence. He was f urther ordered to pay a $1,000 f ine and $503.83 in restitution to the Southaven Police Departm e n t

. C lay t on subsequently f

iled a

m otion f or a judgm ent n otwithstanding the verdi c t ( J N OV) or, alternatively , a new trial, which the circuit court denied. ¶8. Clay

ton t i me l y a p p e aled. Clay ton’s appellate counsel f iled a brief and raised the f ollowing assignm ents of e rror: (1) the evidence is insuf f icient to support the conviction of unlawf ul possession of

a m o tor vehicle, and ( 2) the v erdict is contrary to the weight of the evidence. Clay

ton f iled a pro se supplem ental brief and asserted eight additional assignm ents of error. W e separately

address each issue.

ANALYSIS I. Sufficiency of the Evidence ¶9. Clay

ton f irst argues the evidence is insuf f icient to suppo r t h is conviction of the unlawf ul possession o f a m otor vehicle. In considering whether the evidence i s suf f icient to sustain a conviction, “ the relevant question is whether, af ter viewing the evidence in the light

mo st f avorable t o the p rosecution, any rational trier of f act could have f

ound the e s s e n t i a l elem ents o f the crim e b ey ond a r e a s o n a b l e d o ubt.” W illiams v. State , 35 So. 3 d 480, 485 (¶16) (Miss. 2010) ( citation om itted). W here the f acts and inf

erences “point in f

avor of the def endant on any elem e nt of t he of f ense with suf

f icient f o rce that reasonable [

jurors] could
not have f ound bey ond a reasonable doubt that the def endant was g uilty , t he proper rem edy

3is f

or the appellate court to reverse and r ender.” Id

. ( c i t a t i o ns o m itted). H owever, if “reasonable f

air-m i nded [

jurors] in the exercise of im partial judgm ent m i ght reach dif f erent conclusions on every elem ent o f the of f ense, the evidence will be deem ed to h ave been suf f i cient.” Id . (citations om itted). ¶10. Pursuant to Mississippi Code Annotated section 97-17-42(1), it i s unlawf ul f or “[ a]ny
person [ to] willf

ully and without authority , t ake possession of o r take away a m otor vehicle of any value belonging to another

. . . .” Clay t on argues there is insuf

f icien t e v i d e n c e to show t hat he took p o ssession of W illiam s ’s vehicle “without authority .” He claim s that because he shared the vehicle with W illiam s and W illiam s had not revoked his perm ission
t o u s e t h e vehicle, he had the authority t o take possession of the v ehicle f o llowing th e shooting. W e disagree. ¶11. The record sho w s W illiam s and Clay ton h ad been f

ighting throughout the day

. W i lliam s told C lay

t on she no longer wanted to be i n t he r elationship and asked Clay ton to get h i s s t u f

f a n d leave. Clay

ton began to pack up his belongings and eventually lef t the

a partm ent. Im

p ortantly , when Clay

ton lef t W illiam s’s apartm ent, he did not take t h e c a r . Instead, Clay

ton walked. Clay

ton subsequently called and asked W illiam s to com e pick h im up so he could get the rest of his belongings. ¶12. Following the shooting, C lay ton did not leave o n f

oot, as he had done earlier that day

. Instead, he grabbed W illiam s’s car key s and t o o k h er c ar. Thus, although Clay ton had previously lef

t the apartm ent on f

oot, it was only af

ter W illiam s had been shot twice and her

4phone broken during the altercation that Clay ton grabbed the key s and took the car. ¶13. Alth o u g h W illiam s explained that s he and Clay ton shared her car, W illiam s specif ically testif

ied that she did not give Clay ton perm i ssion to t a k e h e r c ar on that day

. Wi l l i a ms s ubsequently advised the police that they could call the f inancial com

pany to try to locate Clay

ton in the vehicle. ¶14. Considering the evidence in the light m o st f avorable to the State, we f ind suf f icient evidence was presented to support Clay ton’s c onviction of the unlawf u l possession of a

m otor vehicle. Thus, Clay ton’s m otion f

or a JNOV was properly

denied. II. W eight of the Evidence ¶15. Clay

ton n ext argues t he v erdict is against t he overwhelm ing weight of the e vidence. “In reviewing the denial of a m otion f o r a new trial based on a n objection to the weight of the evidence, this Court will only d isturb a verdict w hen i t is so contrary to the overwhelm ing weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Kirk v
. State , 160 So. 3d 6 8 5, 6 9 7 (¶31) (Miss. 2015) ( citation and internal quotation m arks

om itted). The evidence is weighed in the light m ost f avorable t o t h e v e r d i c t

. Id

. “A new trial shou l d b e g r a nted on the basis of the weight of the evidence ‘only in exceptional circum stances, when the evidence weighs heavily against the j ury ’s v erdict.’” Hughes , 983 So. 2d at 277 (¶22) (quoting W ilson v. State , 936 So. 2d 357, 363 (¶16) (Miss. 2006)). ¶16. Clay

ton asserts t h e v erdict is contrary to t he weight o f the evidence “because the [ S]tate f ailed to show a lack of authority to use W i lliam s’s vehicle.” H o w e v er, the record

5shows the jury heard all of the testim ony a n d r e s o l v e d any conf licts in t he evidence. See W illiams v. S t a te , 64 So. 3d 1029, 1033 (¶13) ( Miss. Ct. App. 2011) (“Conf licts in the evidence are f

or the jury to resolve.”). “Any f actual disputes [ we]re properly resolved by the jury and d o not m andate a new trial.” Sneed v. State , 31 So. 3d 33, 4 3 (¶33) (Miss. Ct. App. 2009) (quoting Moore v. State , 859 So. 2d 379, 385 (¶26) (Miss. 2003)). ¶17. Having considered the e vidence presented, we do not f i nd the v erdict to be so contrary
to the overwhelm ing weight of the evidence t hat to allow the verdict to s tand would sanction

an unconscionable injustice. A ccordingly , the circuit court did not err in deny ing Clay ton’s

m otion f or a new trial. III. Ineffective Assistance of Counsel ¶18. Clay

ton f urther argues h e received in ef f ective assistance of counsel. Specif ically , Clay ton claim s his t rial counsel was inef f ective f or: (1) “ n ot showing the routine h abit of

. . . W i lliam s f

ighting and [ accus]ing Clay ton of m essing w ith other w om en,” (2) not objecting
to W illiam s’s f

ailure to i dentif

y h er live-in c o usin, ( 3) “not dem anding a m edica l e x p e r t ’s testim o ny [ r egarding the] hospital treatm ent of [ W illiam s] [ or] any m ed i cal records of [ W illiam s],” (4) not objecti n g to the instructions regarding a directed verdict, and (5) “not objecting to [ t he] Southaven police of f icer[ ’s] [ f a ilure to] giv[ e] [ a] gunshot residue test.” ¶19. To prove inef

f ective assistance of c o unsel, C lay t on m ust show: (1 ) h i s counsel’s perf orm ance was d ef

icient, and (2) the def

icient perf

o rm ance prejudiced his def ense. Strickland v
. W

ashington , 466 U .S. 6 6 8 , 687 ( 1984). “W e look at t he totality of the

6circum stances to d eterm ine whether counsel’s [ perf orm ance was] both def

icient and prejudicial.” Dartez v. State , 177 So. 3d 420 , 4 2 3 (¶19) (Miss. 2015). “[ A] presum ption exists t hat an attorney ’s perf orm ance f

alls w ithin t he wide range of reasonable prof essional assistance and that the decisions m ade by trial counsel are strategic.” Braggs v. State , 121 So. 3d 269, 273 (¶11) (Miss. Ct. App. 2013). “Only where it is reasonably p robable that, but f or the attorney ’s errors, the outcom e w ould have been dif f erent, will we f

ind that counsel’s perf orm ance was def

icient.” D artez , 177 So. 3d at 423 (¶19). ¶20. “ [G ] e n e r a l l y , i n e ffe c t i v e - a s s i s t a n c e-of -counsel claim s are m ore appropriately brough t during post-conviction proceedings.” B ell v. State , 202 So. 3d 1239, 1242 ( ¶12) (Miss. Ct. App. 2016). This Court m ay address “ ine f f e c t ive-assistance-of

-counsel claim s on direct appeal only w here (1) the record af f irm atively shows i nef

f ectiveness of constitutional dim ensions, or (2) the p arties s tipulate t hat the record is adequate a n d the C ourt determ ines that f i ndings of f

act by a trial judge able to consider the d em eanor of witnesses, e t c., are not needed.” Id. ¶21. The record does not af f irm atively s how inef

f ectiveness of constitutional dim ensions. Additionally , there is no stipulation by the parties t hat the record is a dequate t o address this claim

. I n f

act, the State asserts that “[ Clay ton’s] claim s are not r ipe f or direct appeal.” Thus,

we a re unable to adequately and properly ad d r e s s C l a y t o n ’ s i n e f fe c t i ve-assistance-of

-counsel claim on direct appeal. W e theref ore d eny this issue without p rejudice to af f o rd Clay ton the option t o pursue h is claim in a post-conviction p roceeding. See W illi a ms v. State , 228 So.

73d 949, 952-53 ( ¶ 1 4 ) ( M i s s . C t

. A p p . 2 0 1 7 ) ( “ [A

p p e l lant]’s inef

f ective-assistance-of

-counsel

c l aim is m ore appropriately brought during postconviction proceedings, and we th e r e f o r e deny relief wit h out prejudice as t o [ his] right to pursue this claim during p ostconviction proceedings.”). IV. Brady Violation ¶22. Clay

ton next argues the circuit court v iolated Brady v. M aryland , 373 U.S. 83 (1963) by ref using to adm it i nto evidence a post f rom W illiam s’s social-m edia p age. In t he socialm edia p o st, W illiam s stated that she had recently considered suicide a n d h a d “picked up a gun and alm ost ended her lif e .” Clay ton claim s the post “shows t hat [ W illiam s] had an altered m ental state” and was “a danger to herself [ and] the people around her . . . .” ¶23. In B rady , t h e U.S. Suprem e Court held that “ the suppression b y the prosecution of evidence f

avorable to a n accused upon request violates due process w her e t h e evidence is

m ate r i a l e i t her to guilt or to punishm ent, irrespective of the g ood f aith or bad f

aith of the prosecution.” Id

. at 87. Thus, pursuant to Brady , suppression of m aterial e vide n c e b y the prosecution, not the circuit court, violates due process. ¶24. Here, there is no evidence of a Brady violation by the State. The transcript shows the State did not suppress the social-m edia post or inf orm ation regarding the post. In f act, the transcript m akes clear that Clay ton was aware of the s ocial-m e dia post and provided a copy of it to the p rosecutio n p r i o r t o t r ial. As Clay t on f ails to s how t hat the State suppressed

m aterial evidence, his claim regarding an alleged Brady violation is without m erit.

8¶25. Assum ing C lay ton intended to argue that the circuit court erroneously excluded the social-m edia p o s t o n o t her grounds, he f ails to state t hose grounds or cite a ny c ase law in support thereof

. “[ A ]n appellant m

ust present to us a r ecord s uf f i cient to s how the

occurrence of the error h e asserts and also t hat t he m atter was properly presented to the [ circuit] court and tim ely preserved.” B y r o m v
. State , 863 So. 2d 836, 8 53 ( ¶35) (Miss. 2003). “Failure to c ite relevant authority obviates the appellate court’s obligation to review such issues.” Id

. V. Inconsistent Testimony ¶26. Clay

ton next argues “that the testim ony o f State’s witness Queen Rice was inconsistent and perjured.” “The credibility of witness testim ony is the province of the jury .” Doe v. Stegall , 900 So. 2d 363, 3 66 (¶15) (Miss. Ct. App. 2 003). “ [ T ] he jury is responsible f or judging the c redibility of witnesses and the weight that should b e attached to their testim o ny .” Id

. at 367 (¶15). T h us, any inconsistent statem ents m ade by Rice were m atters f or the jury to determ ine. Id

. VI. Medical Expert Testimony ¶27. Clay

ton f urther argues the State “erred in not having a doctor give an opinion of the angle of t he gunshot w ounds.” However, Clay ton was convicted o f t he unlawf ul p ossession of a m otor vehicle, not aggravated assault. Clay ton f ails t o show how such opinion testim ony is relevant to his conviction. Accordingly , this issue is without m erit. VII. Directed Verdict

9¶28. C l ay t on next a rgues the circuit court “erred i n not giving instructions f or a direct e d verdict.” “A directed verdict, judgm ent n otwi t hstanding the verdict[ ,] and a request f or perem ptory instruction all c hallenge the legal suf f iciency of the evidence presented at trial.” W oods v. State , 242 So. 3d 47, 5 4 (¶24) (Miss. 2018). For r easons already discussed, we f ind suf f i cient evidence was p resented at trial to s upport C lay t on’s conviction. Thus, the circuit
court d id not err in deny ing Clay ton’s m otion f

or a directed verdict and m otion f or a JNOV, nor did it err in ref

u sing to give a perem

ptory instruction. VIII. Sharplin Instruction ¶29. During its deliberations, t he jury s e n t a note to the circuit court s tating, “W e are

u nable to reach a n unanim ous agreem ent on Counts 1 and 2 .” Over def ense counsel’ s objection, the circuit c ourt gave an instruction pursuant to Sharplin v. State , 330 S o. 2d 591, 596 ( Miss. 1976). Clay

ton argues the c ircuit court “erred in try ing to m ake the jury m em bers return a guilty

verdict against [ him ].” W e disagree. ¶30. Pursuant to Sharplin , if t he circuit cou rt f eels that there is a likelihood t hat the jury

m ight reach a verdict, it m ay return the jury f

or f urther deliberations. Id

. Here, the record shows that the jury

had deliberated less than two hours regarding a m u lti-count indictm ent and had reached a verdict as to Count 3

. Because t here was a likelihood that the jury would reach a verdict o n the two rem aining counts, the circuit court did not err i n instructing the jury to continue its deliberations. ¶31. Additionally , as p r e v i o u s ly noted, t he jury had reached a unanim ous verdict as to

1 0Count 3; thus, the Sharplin instruction was g i v en as to C ounts 1 and 2. Clay ton was convicted of Count 3 only

. Theref ore, e ven if the c ircuit court erred in g iving a Sharplin instruction, no prejudice resulted, as t he Sharplin instruction did n o t a f f ect the charge on which Clay

ton was convicted. IX. Indictment ¶32. Clay

ton w a s i n d icted a s a habitual of f e nder pursuant to section 99-19-81. Clay ton

a r g u e s t h e “indictm ent was erroneous when the State only used one c o nviction, the 1995 aggravated a ssault conviction[ ,] and d id not inf orm the d ef

en[ s]e o f the second conviction being

. . . robbery until the sentencing phase of the trial

. . . . ” Clay ton asserts that as a result of this error, his constitutional rights to due process and equal protection were violated. ¶33. The indictm ent clearly includes both of C l ay ton’s prior convictions. Thus, Clay ton had n otice o f the habitual-of f e nder charge and the basis of the charg e . A c cordingly , this issue is m eritless. X. Police Report ¶34. During deliberations, the jury sent a note to the circuit court r equesting a copy of the police report

. Wi t h no o bjection by the State or Clay ton, t he c ircuit court r esponded and advised the jury that it “ha[ d] all the evidence [ it] w[ ould] receive in the c ase.” Clay ton last
argues the circuit court erred when “it ref used to let the jury exam ine [ the] police report af ter [ the] jury sent a note

. . . asking f or it.” In support o f his argum ent, Clay ton r elies on U.S. v. Bagley , 473 U.S. 667 (1985). However, Clay ton’s reliance on Bagley is m i splaced.

1 1¶35. As previously discussed, pursuant to Brady , the suppression by t he prose c ution of

evidence f

avorable to a n accused upon request violates due proc e s s w h ere t he evidence is

m aterial t o either guilt o r punishm ent. Brady , 373 U.S. at 87. In Bagley , the Court e xplained that “evidence is m aterial only if there is a reasonable probability that, h ad the e vidence been disclosed to the def

ense, the result of the proceedi n g would have been dif f erent.” Bagley , 473 U.S. at 682. ¶36. Here, Clay

ton does not a llege, and there is n o evidence t o s uggest , t h a t t h e police report was suppressed or withheld by the prosecution. Thus, n either Brady n or Bagley apply

. ¶37. Moreover, the record ref lects t hat the police report was not adm itted into evidence at trial. Instead, an o f

f icer and an investigator w ith the Southaven Police Departm ent testif ied regarding the incident between C lay ton a n d Wi l l iam s. Since t he police report was not adm itted into evidence, the circuit court’s response to the jury was proper. ¶38. AFFIRMED. LEE, C .J., I R

V I N G , P . J . , B A R

N E S , C A R L T O N , F A I R , W I LSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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